BST24 v Minister for Immigration and Citizenship (No 2)
[2025] FedCFamC2G 1144
•22 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BST24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1144
File number(s): SYG 644 of 2024 Judgment of: JUDGE ZIPSER Date of judgment: 22 July 2025 Catchwords: MIGRATION – application for review of decision of registrar – registrar summarily dismissed application for judicial review of decision of Administrative Appeals Tribunal – re-hearing of summary dismissal application – whether judicial review application has no reasonable prospects of success – application for review of registrar’s decision lodged 20 days late – no explanation for delay – extension of time refused Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 143
Migration Act 1958 (Cth) ss 425, 425A, 426A, 426B, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.02, 21.04
Cases cited: AYT16 v Minister for Immigration and Border Protection [2017] FCA 252
BST24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 762
CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344
CZD18 v Minister for Home Affairs [2019] FCA 1442
Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176
Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 16 July 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Jonathan Djasmeini (MinterEllison) ORDERS
SYG 644 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BST24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
22 JULY 2025
THE COURT ORDERS THAT:
1.Leave to file the application for review lodged on 19 June 2025 is refused.
2.The applicant pay the first respondent’s costs in the sum of $750.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 19 June 2025, the applicant lodged, pursuant to r 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), an application for review of a decision of a registrar of this Court dated 23 May 2025 (Registrar Review Application): see BST24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 762 (Registrar Decision). The registrar summarily dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 27 March 2024. Since the Registrar Review Application was lodged outside the 7 days referred to in r 21.02(1) of the Rules, the applicant requires an extension of time under r 21.02(2) to make the Registrar Review Application.
For the reasons that follow, it is not appropriate to extend time for the making of the Registrar Review Application. For this reason, leave to file the Registrar Review Application is refused.
FACTUAL BACKGROUND
In March 2017, the applicant, a citizen of the People’s Republic of China, arrived in Australia on a visitor visa.
In July 2017, the applicant applied for a subclass 866 protection visa.
On 15 March 2018, a delegate of the first respondent made a decision refusing to grant the applicant a protection visa.
On 5 April 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
Between 5 April 2018 and 2 August 2021, the applicant lodged several ‘Change of Contact Details’ forms with the Tribunal with the last form dated 2 August 2021 providing an updated contact email address (QQ Email Address).
On 14 February 2024, the Tribunal sent a letter to the applicant, by email to the QQ Email Address, inviting her to attend a hearing on 7 March 2024.
On 7 March 2024, the applicant did not appear at the hearing before the Tribunal.
On 10 March 2024, the Tribunal made a decision under s 426A(1A)(b) of the Migration Act 1958 (Cth) (Act) dismissing the application (Dismissal Decision).
On 11 March 2024, the Tribunal sent a letter to the applicant, by email to the QQ Email Address, attaching the Dismissal Decision and providing information concerning the ability of the applicant to apply for reinstatement of the application within the prescribed period of 14 days.
On 27 March 2024, following the expiry of the prescribed 14 day period and in circumstances where the applicant had not lodged a reinstatement application, the Tribunal made a decision confirming the dismissal decision (Confirmation Decision).
PROCEEDINGS IN THIS COURT
Judicial review application by applicant and summary dismissal application by first respondent
On 5 April 2024, the applicant lodged an application with the Court under s 476 of the Act seeking judicial review of the Tribunal’s decisions (Originating Application). The grounds in the application were (as written):
1. The Tribunal didn’t consider whether I will face the harms and the persecution if I was forced to go back to my country.
2.The Tribunal failed to give me a full consideration of my application in details.
3.I was refused any fairness and justice during the process of my application.
On 22 May 2024, the first respondent filed a response which sought an order that the Originating Application be dismissed pursuant to r 13.13 of the Rules on the basis that the application had no reasonable prospects of success (Summary Dismissal Application).
On 23 April 2025, at a directions hearing at which the applicant appeared by telephone, the Court listed the Summary Dismissal Application for hearing before a registrar on 23 May 2025 and made procedural orders, including that, in opposition to the Summary Dismissal Application, the applicant file and serve by 20 May 2025 any amended application, a written submission and any additional evidence.
Prior to the hearing of the Summary Dismissal Application on 23 May 2025, the applicant did not file any further materials.
Hearing of Summary Dismissal Application
On 23 May 2025, there was a hearing of the Summary Dismissal Application before a registrar. The applicant appeared by Microsoft Teams, assisted by an interpreter in the Mandarin language.
Following the hearing, and on the same day, the registrar made the Registrar Decision in which he summarily dismissed the Originating Application pursuant to r 13.13(a) of the Rules. The Registrar Decision contained written reasons which, together with orders made by the registrar, were emailed to the parties on 23 May 2025.
Registrar Review Application by applicant and hearing on 16 July 2025
On 19 June 2025, the applicant lodged the Registrar Review Application pursuant to r 21.02 of the Rules. The orders sought were (as written):
1.My application in a proceeding seeking reinstatement granted.
2.The first respondent pay the costs.
On 30 June 2025, the Court made the following orders:
1. The application for review lodged by the applicant on 19 June 2025, including any application for an extension of time under rule 21.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, is listed for hearing at 2 pm on Wednesday 16 July 2025 before Judge Zipser.
2. The applicant shall file and serve a submission and any evidence in support of the application for review, and any application for an extension of time, by 2 pm on Monday 7 July 2025.
3. If the applicant files and serves any materials, the first respondent may file and serve a submission or evidence in reply by 2 pm on Monday 14 July 2025.
On the same day, the Court emailed the orders to the parties and provided details of the date and place of the hearing in the covering email.
The applicant did not file any further materials in support of the Registrar Review Application before the hearing on 16 July 2025.
At the hearing of the Registrar Review Application before me on 16 July 2025, the applicant appeared unrepresented, assisted by a Mandarin interpreter. Jonathan Djasmeini of MinterEllison appeared for the first respondent.
At the commencement of the hearing, the Court ensured the applicant had a copy of a Court Book, filed by the first respondent in March 2025, which contained the Tribunal’s decisions (Dismissal Decision and Confirmation Decision) and documents before the Tribunal. I directed the applicant’s attention to the Tribunal’s decisions. I explained to the applicant that, if she wants to win the court proceeding, she must identify a potential jurisdictional error, which I described as a significant mistake or error, in one or both of the Tribunal’s decisions. I explained the main categories of jurisdictional error.
I also explained to the applicant that she lodged the Registrar Review Application about 20 days late, and she needed to provide evidence to explain the passing of time between 23 May 2025 (date Registrar Decision and orders were emailed to her) and 19 June 2025 (date she lodged Registrar Review Application). She needed to explain why she lodged the Registrar Review Application late. I invited the applicant to give oral evidence under oath. The applicant stated from the Bar table that she lodged the Registrar Review Application late because she was not feeling well. I told the applicant that, if she wanted the Court to rely on her explanation, she must enter the witness box and give evidence under oath. The applicant declined to give evidence under oath.
Mr Djasmeini tendered the Court Book (CB).
I invited the applicant to make oral submissions. She stated that she did not know what to say and she hoped to get another chance. Mr Djasmeini then made oral submissions.
RULES AND PRINCIPLES CONCERNNG SUMMARY DISMISSAL APPLICATIONS AND REVIEW OF REGISTRAR DECISIONS
Rule 13.13 of the Rules states:
13.13 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Aided by s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 (Spencer) and Przyblowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Przyblowski) at [6]-[7], some principles concerning the test for summary dismissal are:
(a)The respondent as the moving party bears the onus of persuading the court that the application has no reasonable prospects of success.
(b)An application “need not be hopeless or bound to fail for it to have no reasonable prospect of success”: s 143 of FCFCOA Act.
(c)The provision “will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable”: Spencer at [22].
(d)The “exercise of powers to summarily terminate proceedings must always be attended with caution”: Spencer at [24].
(e)An “assessment of whether a proceeding has no reasonable prospects of success … involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court”: Przyblowski at [7(4)].
(f)The “determination of a summary dismissal application … requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”: Przyblowski at [7(5)].
In considering whether any deficiency in the applicant’s pleadings in the present matter was “incurable” (Spencer at [22]), it is relevant that the applicant had a number of opportunities to file an amended application, but did not do so.
To successfully prosecute her application for judicial review, the applicant must establish that one or both of the Tribunal’s decisions is affected by jurisdictional error.
Where a registrar of the Court exercises a power, Part 21 of the Rules permits a dissatisfied party to apply for review by a judge of the exercise of power. Rule 21.04 states that the review “must proceed by way of a hearing de novo”.
Rule 21.02 of the Rules states:
21.02 Time for application for review
(1)For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2) The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b) with the consent of the parties to the proceeding.
As stated above, the applicant requires time to be extended to make the Registrar Review Application. Cases such as Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12] indicate that principal factors in considering whether to extend time are:
(1)length of applicant’s delay;
(2)applicant’s explanation for delay;
(3)prejudice to opposing party if time is extended; and
(4)merits of underlying application.
CONSIDERATION
Length of and explanation for applicant’s delay
The Registrar Decision was made on 23 May 2025. The applicant had a right under r 21.02(1) to make an application for review of the Registrar Decision up to 30 May 2025. The applicant lodged the Registrar Review Application on 19 June 2025. The length of the applicant’s delay is about 20 days.
The applicant has not provided an explanation for her delay under oath, despite having had opportunities to provide an explanation and the need for an explanation being explained to her at the hearing in this Court on 16 July 2025.
Although the delay is not long, the applicant’s failure to provide an explanation weighs against the Court extending time. In relation to her explanation from the Bar table that she lodged the Registrar Review Application late because she was not feeling well, the vagueness of this explanation and her refusal to give the explanation under oath causes me to place little weight on the explanation.
Prejudice to first respondent if time is extended
Mr Djasmeini stated that the first respondent suffers no particular prejudice if an extension of time is granted.
Merits of underlying application
Grounds 1 and 2 in Originating Application
The applicant criticises the Tribunal for not considering the merits of her protection visa application. This complaint does not have reasonable prospects of success because, as stated in the Registrar Decision at [15]:
(a)it is well-established that the Tribunal is not required to consider an applicant’s protection claims in determining whether to exercise the dismissal power conferred by s 426A(1A)(b) of the Act (see, for example, CZD18 v Minister for Home Affairs [2019] FCA 1442 at [36]-[37]); and
(b)there would be no purpose in the Tribunal engaging in such an assessment when determining whether to make the Confirmation Decision given the mandatory nature of the obligation imposed upon the Tribunal by s 426A(1E) (see AYT16 v Minister for Immigration and Border Protection [2017] FCA 252 at [10]).
Ground 3 in Originating Application
This ground lacks particulars. A “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37].
Independent consideration
In light of the serious consequences for the applicant if there is a jurisdictional error in one of the Tribunal’s decisions and the fact she has not obtained legal assistance for her judicial review application, on application of the approach in Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the [Tribunal]’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the [Tribunal]’s reasons”.
In undertaking the task in the above paragraph:
(a)For reasons explained in the Registrar Decision at [11], I am satisfied that the hearing invitation given to the applicant complied with the requirements imposed by ss 425 and 425A of the Act.
(b)For reasons explained in the Registrar Decision at [12]-[14], I am satisfied that the applicant was correctly notified of the Dismissal Decision for the purpose of s 426B.
(c)For reasons explained in the Registrar Decision at [17]-[19], I am satisfied that the exercise of power by the Tribunal under s 426A(1A)(b) was reasonable, and the applicant does not have arguable prospects of successfully establishing the contrary position at a final hearing of the application for judicial review.
Since no ground in the Originating Application has reasonable prospects of success, and no other mistake in the Tribunal’s decisions clearly appears upon reviewing documents in the Court Book, the Registrar Review Application has no merit.
Conclusion concerning extension of time
Upon weighing the above factors, I consider it is not appropriate to extend time for the applicant to file the Registrar Review Application. This is due to the failure of the applicant to provide an explanation for her delay in making the Registrar Review Application and the underlying application having no merit. As stated by Mortimer in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4], albeit in the context of a different discretionary procedural power, “it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case …”.
COSTS
At the conclusion of the hearing, I invited submissions on costs. Mr Djasmeini sought an order that the applicant pay the first respondent’s costs in the sum of $750. The applicant did not oppose this order. I consider this amount is reasonable. I will make the order.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 22 July 2025
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